BULLARD v. CITY OF NEW YORK

STANLEY BULLARD, at al., Plaintiffs; -against- THE CITY OF NEW YORK, et al., Defendants

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This is a civil rights action brought pursuant to
42 U.S.C. § 1983 in which plaintiffs allege that they were the victims
of a series of baseless arrests and criminal prosecutions instigated by
the individual defendants and other conspirators. According to
plaintiffs, this alleged series of abuses was perpetrated in order to
drive plaintiffs from their apartment and their neighborhood and to
punish Stanley Bullard for his criticism of his arrests, prosecution
and treatment by defendants and their conspirators. Plaintiffs'
allegations are set forth in greater detail in Judge Koeltl's decision
denying defendants' motion to dismiss the complaint, familiarity with
which is assumed. Bullard v. City of New York. 240 F. Supp.2d 292
(S.D.N.Y. 2003).

Defendants move to compel the production of part of the audio portion
of a video tape made by Stanley Bullard. The video tape in issue was shot
by Mr. Bullard on April 11, 2000 and shows two of the alleged
conspirators  Jill Freshman Cohen and Michael Brooks  talking outside of plaintiffs' apartment
building. Cohen and Brooks then walk into an adjacent wooded area and are
lost from sight for several minutes. They then emerge from the wooded
areas and continue their conversation. Cohen and Brooks are too distant
from the camera for their conversation to be audible; only background
noises are heard during their conversation. The video tape then shows Mr.
Bullard speaking to the camera and providing his interpretation, based on
his lip reading, of what Cohen and Brooks said to each other. Mr. Bullard
expressly states on the tape that his comments are intended for Maria
Bonavoglia, then an Assistant District Attorney in Bronx County, who was
assigned to prosecute one of the cases against Mr. Bullard. It appears
that Mr. Bullard prepared the video tape in an effort to prove to the
Bronx District Attorney's Office that he was the victim of a conspiracy
and that the charges against him were baseless. Plaintiffs' counsel has
informed me that the tape was never provided to Ms. Bonavoglia, but that
it was provided to Martin Galvin, Mr. Bullard's attorney in one of the
state criminal prosecutions. Mr. Galvin never used the tape and never
disclosed it to the prosecution. Plaintiffs have withheld the audio
portion of Mr. Bullard's comments, asserting the attorney  client
privilege and work  product protection.

The audio portion of the tape recording is clearly not within the
attorney  client privilege. The elements of the attorney 
client privilege are well settled: "The [attorney  client] privilege applies
only if (1) the asserted holder of the privilege
is or sought to become a client; (2) the person to
whom communication was made (a) is a member of the
bar of a court, or his subordinate and (b) in
connection with this communication is acting as a
lawyer; (3) the communication relates to a fact of
which the attorney was informed (a) by his client
(b) without the presence of strangers (c) for the
purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d)
for the purpose of committing a crime or tort; and
(4) the privilege has been (a) claimed and (b) not
waived by the client. "

Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A..
160 F.R.D. 437, 441 (S.D.N.Y. 1995), quoting United States v. United
Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950); see
United States v. Davis, 131 F.R.D. 391, 398 (S.D.N.Y. 1990). The
privilege "exists to protect not only the giving of professional advice
to those who can act on it, but also the giving of information to the
lawyer to enable him to give sound and informed advice." Upjohn Co.
v. United States, 449 U.S. 383, 390 (1981).

Mr. Bullard's comments do not satisfy these elements. The tape is an
unsent communication to adverse counsel prepared in an effort terminate a
criminal prosecution. It is not a confidential communication to an
attorney made for the purpose of seeking legal advice. United States
v. Rockwell Int'l, 897 F.2d 1255, 1265 (3rd Cir. 1987) ("The
attorney  client privilege does not apply to communications that
are intended to be disclosed to third parties or that in fact are so
disclosed.") The fact that it was subsequently given to Mr. Bullard's
counsel cannot trans  form it into a privileged attorney  client communication.
Ratliff v. Davis Polk & Wardwell. 354 F.3d 165, 170-71 (2d
Cir. 2003); Colton v. United States, 306 F.2d 633, 639 (2d Cir.
1962).

Plaintiffs' work  product claim is a slightly closer case.
"[T]hree conditions must be met in order to earn work product protection.
The material must (1) be a document or tangible thing, (2) that was
prepared in anticipation of litigation, and (3) was prepared by or for a
party, or by or for his representative." In re Grand Jury Subpoenas
Dated Dec. 18. 1981 & Jan. 4, 1982, 561 F. Supp. 1247, 1257
(E.D.N.Y. 1982) (McLaughlin, J.). Accord Weinhold v. Witte Heavy
Lift. Inc., 90 Civ. 2096 (PKL), 1994 WL 132392 at *2 (S.D.N.Y. April
11, 1994); 2 Michael C. Silberberg & Edward M. Spiro, Civil
Practice in the Southern District of New York, § 15.04 at 15-13
 15-14 (2d ed. 2003).

The Second Circuit has explained that the second element of this test
does not limit the doctrine to documents prepared primarily or
exclusively to assist in litigation: "Nothing in the Rule states or
suggests that documents prepared `in anticipation of litigation' with the
purpose of assisting in the making of a business decision do not fall
within its scope." United States v. Adlman, 134 F.3d 1194,
1198-99 (2d Cir. 1998). Thus, the appropriate inquiry regarding the
second element of the test is whether "`in light of the nature of the
document and the factual situation in the particular case, the document
can fairly be said to have been prepared or obtained because of the
prospect of litigation.'" United States v. Adlman. supra, 134 F.3d
at 1202, quoting 8 C. Wright, A. Miller & R. Marcus,
Federal Practice & Procedure § 2024 at 343 (1994).

In contrast to the attorney  client privilege, which is intended
to encourage full disclosure by the client, the work  product
doctrine "is intended to preserve a zone of privacy in which a lawyer can
prepare and develop legal theories and strategy `with an eye toward
litigation,' free from unnecessary intrusion by his adversaries."
United States v, Adlman, supra, 134 F.3d at 1196;
Genentech. Inc. v. United States Int'l Trade Comm'n,
122 F.3d 1409, 1415 (Fed. Cir. 1997) ("`The work product privilege
protects the attorney's thought processes and legal recommendations.'"),
quoting Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580
(Fed. Cir. 1985).

The audio track itself establishes that the recording was made for one
of the criminal prosecutions against Mr. Bullard and not the present
litigation. This fact does not defeat plaintiffs' work  product
claim. The weight of authority in his Circuit holds that material
protected by the work product privilege retains its protection in
subsequent litigation, especially where, as here, the subsequent
litigation is related to the former litigation. A. I. A. Holdings,
S.A., v. Lehman Bros., 97 Civ. 4978 (LMM)(HBP), 2002 WL 31556382 at
*5, (S.D.N.Y. Nov. 15, 2002); In re Grand Jury Proceedings,
No. M-ll-189, 2001 WL 1167497 at *14 (S.D.N.Y. Oct. 3, 2001);
Garrett v. Metropolitan Life Ins. Co., 95 Civ. 2406 (PKL), 1996 WL 325725 at *4
(S.D.N.Y. June 12, 1996).

The more difficult question is whether Mr. Bullard's analysis of the
portion of the tape depicting a conversation between Brooks and Cohen is
in fact work product. The audio portion track in issue is not work
product in the traditional sense. It was not prepared for use in the
litigation, rather it was prepared in connection with an aborted effort
to terminate the litigation. It does, however, share an important
characteristic with traditional work product in that it is Mr. Bullard's
analysis of what he believed to be evidence. See United States v.
Nobles, 422 U.S. 225, 238 (1975) ("At its core, the work product
doctrine shelters the mental processes of the attorney, providing a
privileged area within which he can analyze and prepare his client's
case.").

Research has not disclosed any authority involving identical facts. The
most analogous line of cases I have been able to locate are those cases
addressing whether a "Wells Submission" is discoverable. Stated simply, a
"Wells Submission" is a written submission to the Securities and
Exchange Commission ("SEC") by an individual or entity whose conduct is
within the scope of the SEC's investigation, and is usually made in an
effort to persuade the SEC that either no violation has occurred or that
any violation that has occurred is not as serious as the SEC may believe.*fn1 The Court of Appeals for the Second Circuit
has squarely held that where such a submission is voluntarily made, any
work product protection that might otherwise apply is waived. In re
Steinhardt Partners. L.P., 9 F.3d 230, 235 (2d Cir. 1993). In
reaching its conclusion, the Second Circuit stressed that it was the
actual disclosure of the Wells Submission that resulted in the waiver,
not the intention to make disclosure. In re Steinhardt Partners.
L.P., supra, 9 F.3d at 235 ("Examination of conflicting authority
and of the purposes of the work product doctrine convinces us that
Steinhardt waived any work product protection by voluntarily
submitting the memorandum to the SEC." (emphasis added)). See
also In re Leslie Fay Cos. Sec. Litig., 152 F.R.D. 42, 44-45
(S.D.N.Y. 1993). Nothing in Steinhardt or its progeny suggests
that the waiver of protection is a consequence of the intent to make
disclosure.*fn2

Applying the foregoing principles to the audio portion of the video
tape in issue leads to the conclusion that the audio portion is
protectable as work product. The audio portion of the tape unmistakably sets forth Mr. Bullard's analysis of a
conversation between Brooks and Cohen and sets forth his beliefs
concerning the relevance of the conversation to the criminal proceeding
against him. Since it constitutes a party's analysis of what the party
believed to constitute evidence and was prepared in anticipation of
litigation, I conclude that it is work product. In addition, plaintiffs
have not waived the protection of the work product doctrine since there
appears to be no dispute that the audio portion in issue was never
disclosed to an adverse party and was never disclosed to anyone in a
manner that made it more likely that the audio portion would come into
the possession of an adverse party. See In re In  Store
Advertising Sec. Litig., 163 F.R.D. 452, 456 (S.D.N.Y. 1995);
In re Crazy Eddie Sec. Litig., 131 F.R.D. 374, 379 (E.D.N.Y.
1990). Since the audio portion of the tape constitutes work product, work
product protection has not been waived, and ...

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